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HQ 081596




January 27, 1988

CLA-2:CO:R:C:G
081596 c
825551

Hanbee America, Inc.
175 Anderson Avenue
Moonachie, New Jersey 07074

Gentlemen:

In a letter dated September 14, 1987, you inquired as to the dutiable status under the proposed Harmonized Tariff Schedule of the United States (HTSUS), of certain children's boots manufactured in Korea. Samples were submitted for examination.

The samples labelled "Hanbee A" and "Hanbee B" are of moon boot construction and have polyurethane uppers. The sidewall of the cupsole in "Hanbee B" is a little taller then the one in "Hanbee A".

It is your view that these boots are dutiable at the rate of 6 percent ad valorem under subheading 6402.91.4075 which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3cm above the top of the outer sole are entirely of non- molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather.

The issue to be determined here is whether the footwear remains classifiable under subheading 6402.91.4075 by virtue of meeting the exception to the second exception. Specifically, how do we choose the location of the point on the "top of the outer sole" from which to measure the 3 centimeters?

In this instance, if the measurement is taken from the inside bottom of the honeycomb structure of the outer sole, the sidewall exceeds 3 centimeters. If the measurement is taken from the top of the honeycomb, the sidewall does not exceed 3 centimeters. This is the case for both samples. It is our position with respect to the standard moon boot bottom that the "top of the outer sole" is not the top of the honeycombed wedge but the flat surface one touches when one's finger is put through the "honeycomb".

Inasmuch as the uppers of the samples are not entirely of non-molded construction from a point 3 centimeters above the top of the outer sole they are precluded from classification under subheading 6402.91.4075 because they are protective footwear classifiable under subheading 6402.91.5090 as other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, other, footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather. This classification represents the present position of the Customs Service regarding the dutiable status of the merchandise under the proposed HSTUS. If there are changes before enactment, this advice may not continue to be applicable.

Sincerely,

John Durant
Acting Director
Commercial Rulings Division

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